KMK Law Management Rights Blog

The NLRB’s interest in social media has been in the news recently and I have commented on it here and here.  The assault on employers’ efforts to manage their employees use of social media as it pertains to the workplace continued this month with two new cases.

The first case involves Hispanics United of Buffalo, a nonprofit that provides social services to low-income clients.  According to the NLRB, the nonprofit unlawfully discharged five employees after they criticized working conditions on Facebook, specifically commenting on work load and staffing.  The NLRB press release adds these details:

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients.  The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

An attorney for Hispanics United of Buffalo has responded, including the following:

The five employees who filed charges with the NLRB were terminated due to their harassing conduct towards a co-employee, which included, but was not just limited to, comments made on Facebook. Their termination was solely based on the statements and conduct directed at this harassed employee which does not qualify as protected concerted activity under Federal law. The Facebook comments were only a part of the complaint made by the harassed employee to HUB. After an investigation into the conduct of these five employees at will, HUB determined they had acted in a manner which warranted termination. The issue of working conditions was never raised by these terminated employees with HUB, nor did it factor into the decision to terminate them.

This week, the NLRB filed a complaint against Chicago car dealership Karl Knauz Motors, Inc., alleging that it violated the NLRA by terminating an employee for Facebook comments.  The complaint states that:

On or about June 14, 2010, Charging Party Becker posted on his Facebook page employees’ concerted protest and concerns about Respondent's handling of a sales event which could impact their earnings.

On or about June 22, 2010, respondent discharged Charging Party Becker.

If nothing else, these new cases indicate the NLRB’s on-going interest in cases arising from the use of social media.  Employers must review policies and, more importantly, train managers to spot these issues before taking any adverse action arising from employees’ use of social media.  The Hispanics United of Buffalo underscores the difficulty employers may face in this area.  Employers have an obligation to address harassing conduct by employees even if it occurs outside the workplace, e.g. via social media sites.  However, having done so, they may face allegations that their conduct violates the NLRA.  Are employers in a Catch-22?  Not necessarily.  As with many employment law matters, the ultimate outcome largely turns on the facts of the case.  If there is clear harassment as opposed to activity protected by the NLRA, the employer should prevail.  The key in these situations is doing a thorough job of investigating and documenting the situation before taking action.  Given the number of recent cases and their high profile in the media, it would be wise to assume your decisions will be scrutinized closely by the NLRB at some point and act accordingly.